Collective Commentary about the New Package Travel Directive

350 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the performance of the relevant travel services should also cover non-material damage such as compensation for loss of holiday enjoyment. As the Directive due to its scope applies not only to leisure travel but also to business travel (unless subject to a general agreement 24 ) the question arises whether business travellers can sue for any kind of “loss of enjoyment”. Probably this would not be appropriate. It seems more reasonable to limit this kind of claims to leisure travel only. Like in case of price reduction, it is hard to determine how a compensation for loss of holiday enjoyment has to be calculated. In the famous British case of Jarvis v Swans Tours 25 , Lord Denning MR didn’t give the least clue on how he calculated the GBP 125 awarded to Mr. Jarvis. In Germany, Ernst Führich has suggested calculating the compensation according to the formula: “compensation = (package price ÷ number of days) × number of days affected × percentage of price reduction” 26 . The Vienna Higher Regional Court, however, has rejected this approach and pointed out that if applied to high-priced packages the Führich formula could lead to a disproportionate result. The amount granted for a day of lost holiday enjoyment should not exceed the average amount granted for a day of light pain and suffering in personal injury cases 27 . At the end – and again like with regard to price reduction – the determination of the amount granted for immaterial damage will be left to judicial discretion. III. GROUNDS OF EXONERATION / DEFENCE OF THE ORGANISER 1. Exhaustive list of exemptions According to Article 14 (3), in case of a damage resulting from a lack of conformity the organiser can only be released from paying compensation to the traveller if he can prove that one of the following three exemptions applies: • the lack of conformity was attributable to the traveller; • it was attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or • it was due to unavoidable and extraordinary circumstances. 24 Article 2 (1) b. 25 Jarvis v Swans Tours [1972] EWCA Civ 8. 26 Führich , Reiserecht 7 § 11 Rn 66. 27 OLG Wien 27.02.2007, 4 R 153/06h.